IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 208 OF 2013S

STATE

vs

ATUNAISA GAUNAVOU

Counsels : Mr. M. Vosawale and Mr. A. Paka for State
Ms. T. Kean for Accused
Hearings : 23 and 24 March, 2015
Summing Up : 25 March, 2015
Judgment : 25 March, 2015
Sentence  : 27 March, 2015

SENTENCE

1.	In a judgment delivered by the court on 25 March 2015, the court and the three assessors found you guilty of raping the complainant twice on September 2012 and January 2013. They also found you guilty of sexually assaulting the complainant twice on those dates. You were convicted as charged on all four counts in the information.

2.	The brief facts were as follows. You were a neighbor of the complainant's family between 2009 and January 2013. You were on friendly terms with them and they trusted you as a friend. In September 2012, you invited the complainant to your bedroom to fold your clothes. At the time, the complainant was under 14 years old, and therefore legally a child [section 2 of Juvenile Act, Chapter 56]. You were approximately 32 years old, at the time. While she was folding the clothes in your bedroom, you raped and sexually assaulted her.

3.	You repeated the above episode in your bedroom in January 2013. You called her into your bedroom to get some clothings. You then closed your bedroom door, forcefully took off her clothes, and raped her. While you were having sex with her, you sexually assaulted her by fondling her breasts and kissing her. The complainant was over 14 years old at the time, and therefore legally a young person.

4.	Rape is a serious offence. It carries a maximum sentence of life imprisonment. Previous case laws have set a tariff of 7 to 15 years imprisonment for the rape of an adult. For the rape of a child, previous case laws have set the tariff of 10 to 16 years imprisonment. For sexual assault, the maximum sentence is 10 years imprisonment. The tariff is now a sentence between 2 to 8 years imprisonment: State v Epeli Ratabacaca, Criminal Case No. HAC 252 of 2011, High Court, Suva.

5.	In this case, the aggravating factors, were as follows:

(i)	Breach of Trust: The complainant's family treated you as a family friend. They were kind to you, and thought highly of you. They trusted their children been with you. Unbeknown to them, you took advantage of their daughter when she was a child (September 2012) and a young person (January 2013). By offending against the complainant, you breached the trust they had in you.

(ii)	Rape of a Child: The complainant was under 14 years in September 2012, and therefore legally a child. The court had always taken a dim view of people who prey on the most vulnerable in our society ie. the children. For violating this child's right, you will have to forfeit your liberties.

(iii)	By offending against the complainant, you showed utter disregard to her right as a human being and her dignity.

6.	The mitigating factors in this case were as follows:

(i)	At the age of 33 years, this is your first offence;
(ii)	You are married with no child, and I've taken note that your marriage had broken down as a result of this case;
(iii)	You have been remanded in custody since 27 May 2013, that is, approximately 1 year 10 months ago.

7.	I start with the rape charge in count no. 1. I start with a sentence of 13 years imprisonment. I add 4 years for the aggravating factors, making a total of 17 years imprisonment. I deduct 1 year 10 months for the time spent in remand, leaving a balance of 15 years 2 months. For been a first offender, I deduct another 1 year 2 months, leaving a balance of 14 years imprisonment. For the other mitigating factors, I deduct 1 year, leaving a balance of 13 years. On count no. 1, I sentence you to 13 years imprisonment.

8.	I repeat the above process and sentence for count no. 3.

9.	On count no. 2 (sexual assault), I start with 2 years imprisonment. I add 1 year for the aggravating factors, making a total of 3 years imprisonment. I deduct 1 year for the mitigating factors, leaving a balance of 2 years imprisonment. On count no. 2, I sentence you to 2 years imprisonment.

10.	I repeat the above process and sentence for count no. 4.

11.	The summary of your sentence are as follows:

(i)	Count no. 1:	Rape:	13 years imprisonment	
(ii)	Count no. 2:	Sexual Assault:	 2 years imprisonment	
(iii)	Count no. 3:	Rape:	13 years imprisonment	
(iv)	Count no. 4:	Sexual assault:	2 years imprisonment	

12.	Because of the totality principle of sentencing, I direct that all the above sentences be made concurrent to each other, making a final sentence of 13 years imprisonment.

13.	Atunaisa Gaunavou, for raping and sexually assaulting the complainant at the material times, I sentence you to 13 years imprisonment, with a non-parole period of 12 years imprisonment, effective forthwith.

14.	The name of the complainant is permanently suppressed to protect her privacy.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.